RUTH LEVIN v. ALLAN SHAPIRO (01/07/83)

No. 889 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action-Law, entered March 16, 1981 at No. 72-2890.

COUNSEL

Diane Rothberg Pevar, Philadelphia, for appellant.

Lewis Kates, Philadelphia, for appellees.

Cavanaugh, McEwen and Beck, JJ.

Author: Mcewen

[ 309 Pa. Super. Page 225]

We here consider an appeal from an order which sustained the Preliminary Objections of appellees and dismissed the complaint of appellant for lack of service. We affirm.

Appellant filed a complaint in trespass against appellees on March 16, 1972, alleging a claim for personal injuries sustained as a result of an alleged assault and battery on June 23, 1970 by appellees Samuel Levin, the ex-husband of appellant, and Allan Shapiro, the stepson of Samuel Levin. At the time the action was commenced Allan Shapiro had not yet attained his majority and the complaint against him named Marilyn Shapiro Levin, his mother, as his parent and natural guardian. The complaint listed the addresses of appellees, Samuel Levin and Allan Shapiro as 791 Barnes Willow Lane, Huntingdon Valley, Montgomery County,

[ 309 Pa. Super. Page 226]

Pennsylvania. The sheriff attempted to make service at this address within the thirty day period after the complaint was filed but was unsuccessful. Appellant then timely reinstated the complaint and directed the sheriff to serve Samuel Levin and Allan Shapiro at their residence, "Apartment 833 Meadowbrook Drive, Huntingdon Valley, Pennsylvania." The order for service completed by the sheriff indicated that service was attempted on a number of occasions and was finally made on May 18, 1972, to a Mrs. Levin, at "Apt. 504, 833 Meadowbrook Drive, Huntingdon Valley", which, of course, differs somewhat from the address that plaintiff had designated to the sheriff. The return of the sheriff listed the relationship of the Mrs. Levin served with the complaint as wife of Samuel Levin and person in charge of Allan Shapiro.

Appellant filed, almost two years later, on May 6, 1974, a praecipe for the entry of a default judgment for failure to file an answer to the complaint. The default judgment was entered and a notice of the entry of the default judgment was mailed to Samuel Levin at 791 Barnes Willow Lane, Huntingdon Valley. Appellant had the matter listed for trial for assessment of damages on February 27, 1980, almost six years after the entry of default judgment. Appellees received a notice dated February 14, 1980 from the Court Administrator of Montgomery County that the case was listed for trial for February 27, 1980. Appellees claimed that they did not have any knowledge of the existence of the lawsuit until the receipt of this notice from the Court Administrator and at that time engaged counsel who filed a petition to strike or in the alternative to open the judgment. Appellant filed a responsive pleading and the court directed depositions to be taken within thirty days. Appellees took the depositions of seven person, including themselves.

Carl F. Burkhart, a deputy sheriff of Montgomery County, testified that his territory for service of process included the Meadowbrook Apartments and that there is no address known as Apartment 504, 833 Meadowbrook Drive, Huntingdon

[ 309 Pa. Super. Page 227]

Valley. He claimed that such an address was non-existent explaining that there could be either an apartment 504 Meadowbrook Drive or an apartment 833 Meadowbrook Drive but that there could be no combination of the two. He further testified that the street address for each apartment on Meadowbrook Drive is the same as the apartment number. It was established during the deposition of deputy sheriff Burkhart that Joseph Pergine, the deputy sheriff who had served the complaint, had died in the interim. Counsel for the parties agreed during the course of this deposition "[t]hat the deputy sheriff that filled it [the order for service] in wrote in the apartment 504 where the service was made" as well as the other data in a different color ink than that used for the 833 Meadowbrook Drive address set forth in the order for service. (R. 115a).

Richard Fare, the first deputy prothonotary of Montgomery County, testified that the office of the prothonotary mailed the notices of entry of judgment to appellees in envelopes prepared by appellant. These notices were ...

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